Filed 7/7/21 Irani v. Exxon Mobil Corp. CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

SHERRY IRANI et al.,

Plaintiff and Appellant,

v.

EXXON MOBIL CORPORATION

et al.,

Defendants and 

Respondents.

 B308353

 (Los Angeles County

 Super. Ct. No. 19STCV00694)

APPEAL from the judgment of the Superior Court of 

Los Angeles County, Maurice Leiter and David S. Cunningham

III, Judges. Affirmed.

Weitz & Luxenberg, Benno Ashrafi and Josiah Parker; 

Sharon J. Arkin, The Arkin Law Firm for Plaintiffs and 

Appellants.

Dentons US, Jayme C. Long, Justin R. Sarno, Alexander B. 

Giraldo; Gibson, Dunn & Crutcher, Theodore J. Boutrous, Jr., 

Joshua S. Lipshutz and Joseph R. Rose for Defendants and 
2

Respondents Exxon Mobil Corporation and ExxonMobil Oil 

Corporation.

King & Spalding, Peter A. Strotz and Anne M. Voigts for 

Defendants and Respondents Chevron Corporation, Chevron 

U.S.A. Inc., and Texaco Inc.

__________________________

Sherry Irani, Robert Bahram Irani, and Azar Behzadi

(collectively, Irani plaintiffs) appeal from a judgment entered 

after the trial court granted the motions for summary judgment 

filed by defendants Chevron Corporation, Chevron U.S.A. Inc.,

and Texaco Inc. (Chevron defendants), and Exxon Mobil 

Corporation and ExxonMobil Oil Corporation (Exxon defendants). 

The Irani plaintiffs brought wrongful death and survivor claims

(including causes of action for negligence, premises liability, and 

loss of consortium), alleging their deceased father Ali Irani1

contracted mesothelioma caused by exposure to asbestos while he 

was an Iranian citizen working for the National Iranian Oil 

Company (NIOC) from the late 1950s to the late 1970s in 

facilities controlled by defendants.

2 The trial court concluded the 

Chevron and Exxon defendants did not owe a duty of care to 

Irani.

On appeal, the Irani plaintiffs contend the Chevron and 

Exxon defendants owed Irani a duty of care based on their 

1 To avoid confusion, we refer to Ali Irani as Irani and 

Sherry Irani by her first name.

2 It is undisputed that mesothelioma is a cancer associated 

with exposure to asbestos.
3

predecessors’ control over the Abadan refinery in which Irani

worked and a 1954 contractual agreement between the Iranian

government and a consortium of international oil companies,

including defendants’ predecessors (the Agreement). The Irani 

plaintiffs also assert the Chevron and Exxon defendants, through 

their predecessors, owed a duty to protect refinery workers like 

Irani from asbestos exposure based on a special relationship 

between the predecessor companies and the refinery workers

arising from the Agreement. Alternatively, Irani contends the 

Chevron and Exxon defendants owed refinery workers a duty of 

care, arising from a special relationship between defendants’ 

predecessors and the companies that operated the refinery.

During the pendency of this appeal, we decided Sabetian v. 

Exxon Mobil Corporation (2020) 57 Cal.App.5th 1054, 1075-1076

(Sabetian), in which we held defendants’ predecessors3 did not 

owe a duty of care to protect refinery workers from asbestos 

hazards at the Abadan refinery. We concluded neither the 

Agreement nor the plaintiffs’ evidence was sufficient to create a 

triable issue of fact that defendants’ predecessors exercised direct 

control over day-to-day refinery operations. (Id. at pp. 1072-

1075.) The Chevron and Exxon defendants likewise did not owe a 

duty of care to Irani, and we affirm.

3 Sabetian involved the same defendants who are parties to 

this action; the plaintiffs were a former Iranian refinery worker 

at the Abadan refinery, who later contracted mesothelioma, and 

his wife. (Sabetian, supra, 57 Cal.App.5th at p. 1060.)
4

FACTUAL AND PROCEDURAL BACKGROUND

A. The Agreement4

In 1951 the government of Iran nationalized its oil assets, 

assuming control from the Anglo-Iranian Oil Company, which 

was majority-owned by the government of Great Britain. In 1952

Iran formed NIOC to own and supervise all of Iran’s oil assets. 

To afford access to global oil markets and avoid possible influence

from the former Union of Soviet Socialist Republics, the United 

States “devised a plan for a consortium of Western corporations 

to support the Iranian Government in running its oil industry to 

increase access to global markets and revenues.”5

In 1954 American oil companies Gulf Oil Corporation, 

Socony-Vacuum Oil Company, Inc., Standard Oil Company of 

New Jersey, Standard Oil Company of California, and the Texas 

Company, and European oil companies Anglo-Iranian Oil 

Company, Ltd., N.V. de Bataafsche Petroleum Maatschappij, and 

Compagnie Francaise des Pétroles (collectively, the consortium 

members) entered into the Agreement with Iran and NIOC.

Defendants Chevron Corporation and Chevron U.S.A. Inc., are

successors in interest to Standard Oil Company of California and 

Gulf Oil Corporation. Defendant Texaco Inc., is the successor of 

the Texas Company. The Exxon defendants are successors in 

4 This discussion is based on undisputed facts taken from 

evidence submitted in connection with the summary judgment 

motions.

5 It is undisputed the Agreement principally covered the 

Abadan refinery. Consistent with the practice of the parties, we 

use “Abadan refinery” to refer generally to the facilities covered

by the Agreement.
5

interest to Socony-Vacuum Oil Company, Inc., and Standard Oil 

Company of New Jersey.

The Agreement consists of two parts, the first among the 

consortium members, Iran, and NIOC and the second among

Iran, NIOC, and the Anglo-Iranian Oil Company, Ltd. Only part 

I is at issue in this case. The recitals for part I provided, 

“WHEREAS, both the Government of Iran and [NIOC] desire to 

increase the production and sale of Iranian oil, and thereby to 

increase the benefits flowing to the Iranian nation . . . , but 

additional capital, experienced management, and technical skills 

are required in order to produce, refine, transport and market . . .

oil in quantities sufficient to effect this increase in a substantial 

amount . . . [¶] WHEREAS, the international oil [consortium 

members] are in a position and are willing to supply such capital, 

management and skills; and [¶] . . . are in a position to market 

substantial quantities of Iranian oil . . . throughout a large part 

of the world over a considerable period of time, to the mutual 

benefit of the Iranian nation and themselves . . . [¶] . . . the 

Parties are agreed that said companies should undertake the 

operation and management of certain of the oil properties . . . of 

the Government of Iran and [NIOC], including the Abadan 

refinery, as hereinafter set forth . . . [¶] [¶] . . . negotiations 

have been amicably carried out with the object of assuring to the 

Government of Iran and [NIOC], on the one hand, a substantial 

export market for Iranian oil and a means of increasing the 

material benefits to and prosperity of the Iranian people, and to 

the companies, on the other hand, the degree of security and the 

prospect of reasonable rewards necessary to justify the 

commitment of their resources and facilities to the reactivation of 

the Iranian oil industry.”
6

Article 3, section A of the Agreement provided that to carry 

out the “functions of exploration, producing, refining, 

transportation and the other functions specified in” the 

Agreement, the consortium members incorporated the “Operating 

Companies” under the laws of the Netherlands. The Agreement 

defined the Operating Companies as the Iranian Oil Exploration 

and Producing Company (IOEPC) and Iranian Oil Refining 

Company (IORC). The consortium members incorporated a 

holding company, Iranian Oil Participants Ltd. (IOP), which 

wholly owned IOEPC and IORC. Each consortium member 

formed at least one wholly owned subsidiary, each of which 

purchased 7 to 8 percent of IOP’s shares. In article 3, section A of 

the Agreement, the consortium members “jointly and severally 

guarantee[d] the due performance by the Operating Companies of 

their respective obligations under this Agreement.”

Article 4 of the Agreement listed and “strictly limited” the 

“rights, powers and obligations of the Operating Companies as 

well as the nature and extent of the supervision to be exercised 

by Iran and NIOC . . . to what is clearly stated in this Article.” 

(Art. 4, § J.) Section A, paragraph (1) provided IOEPC the right

to explore, drill for, produce, extract, process, store, transport, 

and ship crude oil and natural gas. Section A, paragraph (2)

provided for IORC to have the right to refine and process crude 

oil and natural gas produced by IOEPC.

Article 4, section F sets forth “[t]he obligations of the 

Operating Companies to Iran and NIOC.” These obligations 

included the duty “to conform with good oil industry practice and 

sound engineering principles applicable and appropriate to 

operations under similar conditions in conserving the deposits of 

hydrocarbons, in operating the oilfields and refinery and in 
7

conducting development operations.” (Agreement, art. 4, § F, 

¶ (1).) The Operating Companies were obligated “to carry on 

such exploration operations as are economically justifiable with a 

view to providing sufficient reserves to support the rate of 

production of oil” (id., § F, ¶ (2)); “to maintain full records” and 

“accounts” of their activities (id., § F, ¶ (3)); “to minimize the 

employment of foreign personnel” (id., § F, ¶ (4)); and “to prepare 

in consultation with NIOC plans and programs for industrial and 

technical training and education and to cooperate in their 

execution . . . to replace foreign personnel as soon as reasonably 

practicable” (id., § F, ¶ (5)). Article 4, section I further provided, 

“[T]he Operating Companies shall determine and have full and 

effective management and control of all their operations,” subject 

to supervision of their operations by Iran and NIOC as set forth 

in sections F and G.

Article 5, section A of the Agreement stated, “Iran and 

NIOC undertake that neither of them, and no person other than 

the Operating Companies, shall at any time . . . carry out . . . any 

of the functions specified in [p]aragaphs (1) and (2) of Section A of 

Article 4 of this Agreement” (defining the rights of IOEPC and 

IORC to exploration, production, and refining). Article 7 of the 

Agreement granted the Operating Companies the right to 

“exclusive use” of certain lands owned by NIOC and Iran for 

“their operations under [the] Agreement.”6 Under Article 17 of 

the Agreement, NIOC retained authority over all “non-basic 

6 It is undisputed NIOC owned and operated the Abadan 

refinery prior to execution of the Agreement, and the Agreement’s 

grant of authority to the Operating Companies constituted a 

transfer of control over the functions in article 4 from NIOC to 

the Operating Companies.
8

operations,” including medical and health services, industrial and 

technical training and education, and housing.

Article 18 provided consortium members “shall” purchase 

crude oil and “may” purchase natural gas from NIOC for resale in 

Iran for export. Consortium members were permitted to assign 

their rights and obligations to purchase crude oil and natural gas 

to their subsidiaries, referred to as “Trading Companies.” Under 

article 20 of the Agreement, the consortium members guaranteed 

certain oil production and export quantities on an annual basis.

The Agreement contemplated a 25-year lifespan, but in

1973 Iran assumed operations from IORC and IOEPC. IORC’s 

employees were transferred to a new entity formed by NIOC, Oil 

Services Company of Iran, which assumed operation of the

Abadan refinery.

B. The Complaint

The Irani plaintiffs filed this action on January 10, 2019

against the Chevron and Exxon defendants and others, alleging 

causes of action for negligence, strict liability, premises liability, 

negligent joint venture, alter ego, and loss of consortium. The 

complaint alleged each cause of action as a survivorship claim by 

Sherry as the successor in interest to Irani, and as wrongful 

death claims by the Irani plaintiffs as heirs to Irani. The 

complaint alleged the Chevron and Exxon defendants are the 

successors in interest to consortium members that were 

signatories to the Agreement. The complaint alleged the 

predecessors to the Chevron and Exxon defendants, as 

consortium members, contributed “capital, management and 

skills in the operation and management of the oil properties of 

[NIOC], specifically the . . . oil refinery in Abadan, Iran.” 
9

Further, the predecessor companies had “full and effective control 

of the [Abadan] refinery . . . in order to operate that refinery in 

conformity with good oil industry practice and sound engineering 

principles applicable to that industry.” 

The complaint alleged further Irani was exposed to 

products containing asbestos while he worked at the Abadan

refinery and other Iranian facilities from approximately the 

1950s to the late 1970s. In January 2018 Irani was diagnosed 

with mesothelioma caused by his exposure to asbestos at these 

facilities. Irani died the same month. 

C. The Chevron and Exxon Defendants’ Motions for Summary 

Judgment

The Chevron and Exxon defendants separately moved for 

summary judgment. They argued they owed no duty of care to 

Irani because they did not own, possess, or control the facilities in 

which Irani was alleged to have been exposed to asbestos.

The Chevron defendants filed a declaration of Frank G. 

Soler, the senior subsidiary governance liaison for Chevron 

Corporation, who stated the Chevron defendants’ predecessors 

“did not ever own, lease, maintain, manage, control, or supervise” 

the Abadan refinery. Soler averred a separate corporate entity 

facilitated requests from the Operating Companies to the 

consortium members “for skilled personnel.” Employees of the 

consortium members sent to work at the Abadan refinery were 

“seconded,” meaning “their employment with the [consortium 

member] oil company terminated and such employees were then 

formally employed by IORC and/or IOEPC.”

The Chevron defendants also filed a declaration of former 

Texaco Inc., employee Carter B. Conlin in which Conlin averred 
10

he worked at the Abadan refinery from 1958 to 1963. At the 

refinery, Conlin supervised approximately 20 engineers, 

including “seconded employees” from other oil companies.7

Conlin and the other seconded employees he supervised were 

“employed and paid by IORC for all work performed at the 

Abadan [r]efinery” and did not take direction or payment from 

“their past oil company employers or any oil company 

subsidiaries.” The Chevron defendants filed excerpts of

deposition testimony from Conlin in Alkhas v. A.W. Chesterton 

Company (Super. Ct. L.A. County, 2014, No. BC473745), in which 

he testified employees loaned by consortium members to IORC 

were thereafter treated as employees of IORC.

8

D. The Irani Plaintiffs’ Opposition to Defendants’ Motions for 

Summary Judgment

The Irani plaintiffs opposed the Chevron and Exxon 

defendants’ motions, arguing the Agreement and defendants’ 

control over operations at the Abadan refinery created a duty of 

care owed by the Chevron and Exxon defendants to Irani to 

7 From 1958 to 1960, Conlin held the position of section head 

of the oil conversion processes section of the process engineering 

department for IORC at the Abadan refinery. From 1960 to 

1963, he held the position of technical advisor for catalytic 

reforming in the refining operations department for IORC at the 

Abadan refinery.

8 The Exxon defendants also relied on the Soler declaration 

and the Conlin deposition transcript filed by the Chevron 

defendants. 
11

protect him from asbestos exposure.9 The Irani plaintiffs filed 

multiple declarations and excerpts of deposition testimony with 

their opposition.

Dr. Neill Weaver stated in his deposition in Altimore v.

Quigley Company, Inc. (District Ct. Galveston County, Texas, 

2013, No. 03CV0588) he worked from 1951 to 1973 as a physician 

for Esso Standard Oil Company, an Exxon predecessor.10 

Dr. Weaver identified a 1937 document entitled “Dust Producing 

Operations in the Production of Petroleum Products and 

Associated Activities,” which made suggestions for control and 

suppression of asbestos dust. When asked about Esso’s asbestos 

practices, Dr. Weaver testified that when he began working in 

Esso’s Baton Rouge, Louisiana refinery in 1951, “measures were 

in effect for the control of exposures throughout the refinery and 

the medical surveillance program for the workers potentially 

exposed to asbestos was in operation and had been in operation 

for decades.”

Bruce Larson, who testified as Exxon Mobil Corporation’s

person most qualified in Shahabi v. A.W. Chesterton Company

(Super. Ct. L.A. County, 2012, No. BC421531), was asked, “Do 

you agree that Exxon and Mobil had employees in high level 

9 The Irani plaintiffs dismissed their strict liability, 

negligent joint venture, and alter ego claims before the summary 

judgment proceedings. The Irani plaintiffs did not dispute IOP, 

IORC, and IOEPC each held regular meetings, maintained 

independent records, and had their own officers and directors. 

10 Weaver testified he worked for Esso Standard Oil Co., 

which later became Exxon. The Exxon defendants acknowledge 

previously doing business under the name Esso. It is not clear 

from the record which consortium member Esso succeeded.
12

management at the Abadan refinery between 1955 and 1968?” 

He responded, “I think that’s probably correct, yes.” Larson also 

testified it was “certainly possible” that a person with

management responsibility could cause work practices to be 

followed at the refinery, but he clarified that the Abadan refinery 

“had a patchwork of various jobs represented by Iranian 

nationals, various jobs represented by people from the 

participating companies, and . . . I don’t really know how control 

was exercised in a situation like that.” Larson testified he

believed Exxon employees who worked at the Abadan refinery 

would be paid by the “holding company,” not Exxon, and he was 

not aware of Exxon or Mobil “exercis[ing] any direct control over 

anybody” working at the Abadan refinery.

Testifying as Exxon Mobil Corporation’s person most 

qualified in Enayati v. A.W. Chesterton Company (Super. Ct. L.A.

County, 2009, No. BC400729), Larson testified he had no direct 

knowledge of the health and safety practices of the Abadan 

refinery during the period from 1954 to the 1980s. But he stated 

it had “always been at least the policy of Exxon and Mobil 

that . . . the same rules and regulations that apply domestically 

apply to overseas facilities. So I’m assuming that—and this is an 

assumption . . . [¶] . . . that comparable safety procedures and 

programs would be in place at [the Abadan] refinery as they 

would have been elsewhere.” Larson affirmed he based his 

assumption on his experience with the standard operating 

procedures of the company.

Daniel Agopsowicz testified as the person most qualified for 

the Exxon defendants in his deposition in Sabetian v. Air & 

Liquid Systems Corporation (Super. Ct. L.A. County, 2018, 

No. BC699945). When asked whether the Exxon defendants 
13

agreed “[i]t is part of good oil industry practice to ensure that the 

people on the refinery floor are kept safe,” Agopsowicz replied, 

“Yes.” When asked whether the Exxon defendants’ predecessors 

“believe[d] at the time of signing [the Agreement] that [they] had 

an obligation to ensure that the Abadan [r]efinery was operated 

appropriately,” Agopsowicz replied, “If they signed [the 

Agreement], then they would agree with this, yes.”11 Agopsowicz 

further testified the Exxon defendants’ predecessors sent 

employees to work for the operating companies at the Abadan 

refinery, including Standard Oil of New Jersey’s employee Paul 

Kuhl, who became general manager of the refinery. 

Soler testified as the person most qualified for the Chevron 

defendants in Sabetian v. Air & Liquid Systems Corporation, 

supra, No. BC699945). Soler was asked in his deposition whether 

the statement made by Standard Oil of California (the 

predecessor of Chevron U.S.A., Inc.) in its 1964 annual report

was true that “[t]he Iranian oil consortium has operated Iran’s 

principal oil[] producing, refining, and transportation facilities for 

the past ten years.” Soler responded, “It’s a statement that was 

made by the company to stockholders.”

The Irani plaintiffs also submitted a copy of a booklet

entitled “Working with the Operating Companies in Iran 1958”

(Iran booklet) issued by Socony Mobil Oil Company, Inc. (an 

affiliate of consortium member Socony-Vacuum Oil Company, 

Inc., the predecessor in interest to the Exxon defendants) to 

Socony’s employee Charles Schroeder. Schroeder was transferred 

11 It appears from the question and answer that this 

testimony was in the context of questions about the Agreement. 

However, the record does not contain the prior page of the 

deposition transcript.
14

to Iran to work for the operating companies from 1958 to 1960. 

The booklet explained IORC and IOEPC had conducted 

“production and refining of oil in Southern Iran in accordance

with the Agreement . . . . [¶] The joint Head Office of these two 

Operating Companies is located in Teheran, from which all 

activities of the Companies are directed.” A section entitled 

“Terms and Conditions of Employment” stated, “Employees on 

loan assignment from a Member Company will remain employed 

by such Member Company but will be subject to these conditions 

for the period of their Company Service, unless otherwise 

provided in these conditions.” The booklet further stated the 

operating companies would pay the salaries of “loan employees,”

with monthly deductions from the total salary paid for “Iranian 

income tax and electricity tax or for services provided by the 

[operating companies],” unless alternative arrangements were 

made between the Operating Companies and the consortium 

member or its affiliated company. With regard to “operational 

requirements,” the booklet stated, “Whether he is directly 

engaged by the [Operating Companies] or on loan assignment 

from a Member Company, the employee shall give his whole time 

services to the [Operating Companies] . . . , in accordance with 

the orders and directions from time to time given to him by the 

[Operating Companies] . . . , and will work and reside in such 

places as the [Operating Companies] may from time to time 

require, and will abide by all applicable rules, regulations and 

other practices of the [Operating Companies] . . . from time to 

time in effect.”

The Irani plaintiffs submitted excerpts of Conlin’s 

deposition testimony in Sarooie v. Asbestos Corporation Limited 

(Super. Ct. L.A. County, 2015, No. BC529503). Conlin was asked, 
15

based on the Iran booklet’s statement that loaned employees “will 

remain employed” by the consortium member or affiliate 

company while on loan to the Operating Companies, whether 

Conlin was employed by Texaco when he worked for IORC at the 

Abadan refinery. Conlin responded, “It appears so, according to 

this definition.” When asked whether this “was the same 

definition you were working under when you were in Iran,” 

Conlin responded, “Yeah. The main two stipulations were that 

we would have the right to come back to a job of equal status, and 

that our benefit plans would remain in effect.” 

The Irani plaintiffs did not dispute the facts set forth in the 

Exxon defendants’ undisputed material facts that Irani was 

“employed by” NIOC or IORC, and not by the Exxon defendants 

or their predecessors.

12 Nor did the Irani plaintiffs dispute 

“IORC conducted the ‘basic’ refining functions” at the Abadan 

refinery. The Irani plaintiffs also did not dispute that IOP did 

not play a role in Iranian oil refinery operations.

E. The Trial Court’s Ruling and Entry of Judgment

On February 28, 2020 the trial court13 granted the Chevron 

and Exxon defendants’ motions for summary judgment. In its 

12 However, the Irani plaintiffs disputed the Exxon 

defendants’ contention the Irani plaintiffs had not shown Irani 

was supervised, directed, or instructed by an employee of the 

Exxon defendants or their predecessors, and that the seconded 

employees “remained employed by the [c]onsortium member.” 

The Irani plaintiffs cited to the Agreement, the Iran booklet, and 

the testimony of Agopsowicz, Conlin, and Larson. 

13 Judge Maurice A. Leiter.
16

written ruling, the court14 found the Agreement did not create a 

duty of care to Irani, and the Irani plaintiffs failed to raise a 

triable issue of fact as to whether defendants owned or controlled 

the Abadan oil refinery.

15

On September 16 and 29, 2020 the trial court entered a 

judgment of dismissal in favor of the Chevron defendants and the 

Exxon defendants, respectively. The Irani plaintiffs timely 

appealed.

DISCUSSION

A. Standard of Review on Summary Judgment

Summary judgment is appropriate only if there are no 

triable issues of material fact and the moving party is entitled to 

judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); 

Regents of University of California v. Superior Court (2018) 

4 Cal.5th 607, 618 (Regents); Delgadillo v. Television Center, Inc. 

(2018) 20 Cal.App.5th 1078, 1085.) “‘“‘“We review the trial court’s 

decision de novo, considering all the evidence set forth in the 

moving and opposing papers except that to which objections were 

made and sustained.”’ [Citation.] We liberally construe the 

evidence in support of the party opposing summary judgment and 

resolve doubts concerning the evidence in favor of that party.”’” 

14 Judge David S. Cunningham III entered the written order 

granting defendants’ motions for summary judgment and the 

judgment of dismissal in favor of defendants. 

15 By stipulation of the parties’ counsel, the trial court did not 

rule on the evidentiary objections made by the parties. The 

parties do not renew their objections on appeal, and we do not 

consider them.
17

(Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347; 

accord, Valdez v. Seidner-Miller, Inc. (2019) 33 Cal.App.5th 600, 

607 (Valdez).)

A defendant moving for summary judgment has the initial 

burden of presenting evidence that a cause of action lacks merit 

because the plaintiff cannot establish an element of the cause of 

action or there is a complete defense. (Code Civ. Proc., § 437c, 

subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 

826, 853; Valdez, supra, 33 Cal.App.5th at p. 607.) If the 

defendant satisfies this initial burden, the burden shifts to the 

plaintiff to present evidence demonstrating there is a triable 

issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2); 

Aguilar, at p. 850; Valdez, at p. 607.)

B. Principles of Contract Interpretation

“‘The rules governing the role of the court in interpreting a 

written instrument are well established. The interpretation of a 

contract is a judicial function. [Citation.] In engaging in this 

function, the trial court “give[s] effect to the mutual intention of 

the parties as it existed” at the time the contract was executed. 

[Citation.] Ordinarily, the objective intent of the contracting 

parties is a legal question determined solely by reference to the 

contract’s terms. [Citations.]’” (Brown v. Goldstein (2019) 

34 Cal.App.5th 418, 432; accord, State of California v. 

Continental Ins. Co. (2012) 55 Cal.4th 186, 195; Sabetian, supra, 

57 Cal.App.5th at p. 1069.) “‘Extrinsic evidence is admissible, 

however, to interpret an agreement when a material term is 

ambiguous. [Citations.]’” (Brown v. Goldstein, at p. 432; accord, 

Sabetian, at p. 1069.)
18

“The law has long distinguished between a ‘covenant’ which 

creates legal rights and obligations, and a ‘mere recital’ which a 

party inserts for his or her own reasons into a contractual 

instrument. Recitals are given limited effect even as between the 

parties.” (Emeryville Redevelopment Agency v. Harcros Pigments, 

Inc. (2002) 101 Cal.App.4th 1083, 1101; accord, Hunt v. United 

Bank & Trust Co. (1930) 210 Cal.108, 115 [“Recitals or preambles 

prefixed to an agreement may or may not have binding force. If 

they form part of the operative covenants of the instrument in 

such a way as to show it was designed and intended that they 

should form part of it, they will be so construed.”]; O’Sullivan v. 

Griffith (1908) 153 Cal. 502, 506 [“A covenant or warranty is 

never implied from a mere recital.”]; Sabetian, supra, 

57 Cal.App.5th at p. 1069.) However, “[i]f the operative words of 

a grant are doubtful, recourse may be had to its recitals to assist 

the construction.” (Civ. Code, § 1068;

16 see Sabetian, at p. 1069; 

Golden West Baseball Co. v. City of Anaheim (1994) 

25 Cal.App.4th 11, 38 [language labeled “recital” was actually 

covenant because it contained operative promise and recourse to 

language was necessary to identify real property subject to the 

agreement].)

16 All further undesignated statutory references are to the 

Civil Code.
19

C. The Irani Plaintiffs Failed To Raise a Triable Issue of Fact 

as to Their Negligence and Premises Liability Claims17

1. Duty of care

“The elements of a negligence claim and a premises liability 

claim are the same: a legal duty of care, breach of that duty, and 

proximate cause resulting in injury.” (Kesner v. Superior Court

(2016) 1 Cal.5th 1132, 1158 (Kesner); accord, Castellon v. U.S. 

Bancorp (2013) 220 Cal.App.4th 994, 998.) “Recovery in a 

negligence action depends as a threshold matter on whether the 

defendant had ‘“a duty to use due care toward an interest of [the 

plaintiff’s] that enjoys legal protection against unintentional 

invasion.”’” (Southern California Gas Leak Cases (2019) 

17 The Chevron and Exxon defendants argue we should not 

reach the merits of the Irani plaintiffs’ arguments on appeal 

because the law of the case doctrine applies to bar relitigation of 

the issues in light of the Court of Appeal’s unpublished decision 

in Malek v. Chevron U.S.A. Inc. (Nov. 14, 2019, B270957) 

[nonpub. opn.] 2019 WL 6001030, noting the Malek case and this 

case were coordinated as part of LAOSD Asbestos Cases. (Nov. 14, 

2019, B270957) [nonpub. opn.] 2019 WL 6001030. “‘“The doctrine 

of ‘law of the case’ deals with the effect of the first appellate 

decision on the subsequent retrial or appeal: The decision of an 

appellate court, stating a rule of law necessary to the decision of 

the case, conclusively establishes that rule and makes it 

determinative of the rights of the same parties in any subsequent 

retrial or appeal in the same case.”’” (Leider v. Lewis (2017) 

2 Cal.5th 1121, 1127.) The Irani plaintiffs were not parties to the 

Malek appeal and, therefore, we do not apply the law of the case 

doctrine.
20

7 Cal.5th 391, 397; accord, Sabetian, supra, 57 Cal.App.5th at 

p. 1070.)

“Generally speaking, all persons have a duty to take 

reasonable care in their activities to avoid causing injury, though 

particular policy considerations may weigh in favor of limiting 

that duty in certain circumstances.” (Brown v. USA Taekwondo

(2021) 11 Cal.5th 204, 209 (Brown); accord, Regents, supra, 

4 Cal.5th at p. 619; Vasilenko v. Grace Family Church (2017) 

3 Cal.5th 1077, 1083 (Vasilenko).) As section 1714, subsection (a)

provides, “Everyone is responsible, not only for the result of his or 

her willful acts, but also for an injury occasioned to another by 

his or her want of ordinary care or skill in the management of his 

or her property or person, except so far as the latter has, willfully 

or by want of ordinary care, brought the injury upon himself or 

herself.” “‘[I]n the absence of [a] statutory provision declaring an 

exception . . . , no such exception should be made unless clearly 

supported by public policy.’” (Brown, at p. 217; accord, Regents,

at p. 628 [“The court may depart from the general rule of duty . . .

if other policy considerations clearly require an exception.”]; 

Kesner, supra, 1 Cal.5th at p. 1143.)

In determining whether an exception to section 1714 

applies, courts consider “the foreseeability of harm to the 

plaintiff, the degree of certainty that the plaintiff suffered injury, 

the closeness of the connection between the defendant’s conduct 

and the injury suffered, the moral blame attached to the 

defendant’s conduct, the policy of preventing future harm, the 

extent of the burden to the defendant and consequences to the 

community of imposing a duty to exercise care with resulting 

liability for breach, and the availability, cost, and prevalence of 

insurance for the risk involved.” (Rowland v. Christian (1968) 
21

69 Cal.2d 108, 113 (Rowland); accord, Brown, supra, 11 Cal.5th 

at p. 217; Kesner, supra, 1 Cal.5th at p. 1143.)

A defendant’s control over property is sufficient to create a 

duty of care owed to persons using the property. (Alcaraz v. Vece

(1997) 14 Cal.4th 1149, 1162, 1166 [affirming reversal of 

summary judgment because there were triable issues of fact as to 

landlord’s control of strip of city land where landlord had 

“maintained the lawn . . . and, subsequent to the incident at 

issue, constructed a fence surrounding the entire lawn”]; 

Sabetian, supra, 57 Cal.App.5th at p. 1071; Annocki v. Peterson 

Enterprises, LLC (2014) 232 Cal.App.4th 32, 37 [trial court 

should have allowed plaintiff to plead that defendant restaurant 

failed to warn patrons leaving the restaurant that only a right 

turn could safely be made from its parking lot although accident 

occurred on adjacent roadway].)

“Premises liability ‘“is grounded in the possession of the 

premises and the attendant right to control and manage the 

premises”’; accordingly, ‘“mere possession with its attendant right 

to control conditions on the premises is a sufficient basis for the 

imposition of an affirmative duty to act.”’” (Kesner, supra, 

1 Cal.5th at p. 1158; accord, Taylor v. Trimble (2017) 

13 Cal.App.5th 934, 943-944 [“landowners are required ‘to 

maintain land in their possession and control in a reasonably safe 

condition’ [citations], and to use due care to eliminate dangerous 

conditions on their property”].) However, “[a] defendant cannot 

be held liable for the defective or dangerous condition of property 

which it did not own, possess, or control. Where the absence of 

ownership, possession, or control has been unequivocally 

established, summary judgment is proper.” (Isaacs v. Huntington 

Memorial Hospital (1985) 38 Cal.3d 112, 134; accord, Sabetian, 
22

supra, 57 Cal.App.5th at p. 1071; Seaber v. Hotel Del Coronado

(1991) 1 Cal.App.4th 481 [hotel did not owe duty to patron who 

was struck and killed in a marked crosswalk outside hotel’s 

entrance]; cf. Vasilenko, supra, 3 Cal.5th at p. 1085 [church had 

duty toward invitees who crossed public street to get to parking 

lot across the street because the church increased the invitees’ 

exposure to the dangers of the street by placing and maintaining 

the parking lot on the other side of the street].)

“[S]ection 1714 does not . . . impose a presumptive duty of 

care to guard against any conceivable harm that a negligent act 

might cause.” (Southern California Gas Leak Cases, supra, 

7 Cal.5th at p. 399; accord, Sabetian, supra, 57 Cal.App.5th at 

p. 1071; Dekens v. Underwriters Laboratories Inc. (2003) 

107 Cal.App.4th 1177, 1187-1188 [plaintiffs failed to raise a 

triable issue of material fact whether defendant “undertook the 

responsibility to guarantee [decedent’s] safety from cancercausing asbestos through its process of testing and certifying 

small appliances as safe from injury due to fire, electrical shock, 

or injuries from sharp protruding objects”].)

2. The Irani plaintiffs failed to raise a triable issue of 

fact as to the Chevron and Exxon defendants’ 

ownership, possession, or control of the Iranian 

facilities

The Irani plaintiffs acknowledge the central question is 

whether the Chevron and Exxon defendants (as successors to the 

consortium members) had active supervisory and management 

control over the Abadan refinery premises. The Irani plaintiffs 

do not dispute NIOC, and later Iran, not the consortium 

members, owned the facilities where Irani was exposed to 
23

asbestos. However, they contend the consortium members

controlled the sources of asbestos at the Abadan refinery where

Irani was exposed. They also argue the Agreement created a 

duty of care by providing for the consortium members to create

the Operating Companies, to ensure the Operating Companies 

would use “good oil industry practice[s],” and to promise to 

purchase oil for export and guarantee the production and 

exportation of specified quantities of oil.

As we concluded in Sabetian, “[T]he Chevron and Exxon 

defendants’ commitments in the Agreement do not demonstrate 

their control over the Abadan refinery.” (Sabetian, supra, 

57 Cal.App.5th at p. 1072.) We observed, “Article 1 of the 

Agreement defined ‘Operating Companies’ by express reference 

only to IOEPC (the exploration and production company) and 

IORC (the refining company), to the exclusion of the separately 

defined term of ‘[c]onsortium members.’ The Agreement gave 

Iran and NIOC supervisorial authority over the Operating 

Companies, with IORC and NIOC sharing control of the Abadan 

refinery. As discussed, IORC controlled the refining and 

processing of the crude oil and natural gas at the refinery (art. 4, 

§ A, ¶ (2)) and NIOC controlled the ‘non-basic operations,’

including housing, medical and health services, and industrial 

and technical training and education (art. 17, §§ A, ¶ (1), B).” 

Contrary to [plaintiff]’s assertion the Chevron and Exxon 

defendants’ predecessors had effective control over the Abadan 

refinery, the Agreement expressly stated “‘no person other than 

the Operating Companies, shall at any time . . . carry out . . . any 

of the functions’” of exploration, production, and refining, and the 

‘nature and extent of the foregoing rights, powers and obligations 

of the Operating Companies as well as the nature and extent of 
24

the supervision to be exercised by Iran and NIOC shall be strictly 

limited to what is clearly stated in [article 4].’” (Sabetian, at 

p. 1072.)

We concluded that the consortium members’ or their 

subsidiaries’ ownership of 7 to 8 percent of the shares of IOP, 

which in turn owned IOEPC and IORC, was “not sufficient to 

create a duty of care as to refinery workers employed by the 

Operating Companies, . . . absent evidence supporting the

piercing of the corporate veil based on the alter ego doctrine.” 

(Sabetian, supra, 57 Cal.App.5th at p. 1072, citing Mesler v. 

Bragg Management Co. (1985) 39 Cal.3d 290, 300 [to pierce the 

corporate veil, a plaintiff must show “‘(1) that there be such unity 

of interest and ownership that the separate personalities of the

corporation and the individual no longer exist and (2) that, if the 

acts are treated as those of the corporation alone, an inequitable 

result will follow’”] and Curci Investments, LLC v. Baldwin (2017) 

14 Cal.App.5th 214, 220 [“Ordinarily a corporation is considered 

a separate legal entity, distinct from its stockholders, officers and 

directors, with separate and distinct liabilities and obligations.”].)

Further, as in Sabetian, to the extent the consortium 

members controlled IOP, which owned the Operating Companies, 

the Irani plaintiffs never presented evidence to support liability 

of IOP as the parent corporation. (See Sabetian, supra, 

57 Cal.App.5th at p. 1073, citing Waste Management, Inc. v. 

Superior Court (2004) 119 Cal.App.4th 105, 110 [“[A] parent 

corporation is not liable for injuries of a subsidiary’s employee in 

the absence of evidence establishing a duty owed by the parent 

corporation to the employee.”].) Here, the Irani plaintiffs 

dismissed their alter ego claims before the summary judgment 

proceedings.
25

In Sabetian we also rejected the plaintiffs’ argument that 

the consortium members had the ability to intervene in refinery 

management to meet their obligations under the Agreement 

based on the consortium members’ incorporation of the Operating 

Companies; their joint and several guarantee of the due 

performance of the Operating Companies to Iran and NIOC, 

including the commitment “‘to conform with good oil industry 

practice’”; and their guarantee to Iran and NIOC of the 

production and exportation of certain quantities of oil. (Sabetian, 

supra, 57 Cal.App.5th at p. 1073.) Instead, the consortium 

members would satisfy their commitments under the Agreement 

by their creation of independent corporate entities (the Operating 

Companies) to provide the necessary day-to-day management and 

control of the Abadan refinery because “the Agreement tasked 

IORC and NIOC, not the consortium members, with refinery 

operations.” (Ibid.) Further, “IORC’s commitment to conform 

with good industry practice was explicitly stated in the 

Agreement as an obligation to Iran and NIOC, as were the 

consortium members’ guarantees.” (Ibid.)

18

We also reviewed the deposition testimony submitted by 

the plaintiffs in Sabetian (also relied on by the Irani plaintiffs) 

18 We also rejected the argument “defendants’ control over the 

Abadan refinery is demonstrated by the recital language in the 

Agreement,” concluding “the recital language referring to the 

willingness of the consortium members to provide their 

management abilities and their agreement to undertake the 

operation and management of the oil facilities was by its own 

terms limited by the specific provisions of the Agreement that 

vested responsibility for operation and control in the Operating 

Companies and NIOC.” (Sabetian, supra, 57 Cal.App.5th at 

pp. 1073-1074.)
26

and concluded, “The testimony of Larson, testifying as Exxon 

Mobil Corporation’s person most qualified, that ‘there may have 

been some’ Exxon or Mobil employees in high level management 

positions at the Abadan refinery is consistent with defendants’ 

evidence that employees of consortium members who worked at 

the Abadan refinery were loaned to the refinery and under the 

control of and paid by IORC. For example, Soler, the senior 

subsidiary governance liaison for Chevron Corporation, declared

that consortium members sometimes provided ‘skilled personnel’

to the Abadan refinery in response to requests from the 

Operating Companies, but these workers were then ‘formally 

employed’ by the Operating Companies, not their former 

consortium member employer. Similarly, Conlin, who in 1958 

was an assistant chief design engineer employed by Texaco Inc.,

testified that from 1958 to 1963 he was seconded to work at the 

Abadan refinery, at which time he was employed and paid by 

IORC and took direction from IORC, not Texaco Inc., or other 

American oil companies. Further, Larson testified he was not 

aware of Exxon or Mobil ‘exercis[ing] any direct control over 

anybody’ working at the Abadan refinery.” (Sabetian, supra,

57 Cal.App.5th at p. 25.)

Contrary to the Irani plaintiffs’ contention in their reply

brief, the additional evidence relied on by the Irani plaintiffs did 

not create a triable issue of fact that the consortium members 

had control over operations at the Abadan refinery. The Irani 

plaintiffs contend the Iran booklet establishes that employees 

loaned by the consortium members or their affiliates remained 

employees of the foreign company while working for the 

Operating Companies in Iran, distinguishing this case from 

Sabetian. The Irani plaintiffs also rely on Conlin’s deposition 
27

testimony in which he acknowledged that while he worked for 

IORC in Iran, he remained an employee of Texaco, as defined by 

the Iran booklet, explaining the “main two stipulations were that 

we would have the right to come back to a job of equal status, and 

that our benefit plans would remain in effect.” However, the 

booklet also dictated the loaned employee would work “in 

accordance with the orders and directions from time to time given 

to him by the [Operating Companies] . . . and will abide by all 

applicable rules, regulations and other practices of the 

[Operating Companies] . . . from time to time in effect.” This 

provision is consistent with Conlin’s testimony that workers in 

the Iranian refinery did not take direction from “their past oil 

company employers or any oil company subsidiaries.” Further, 

neither the booklet nor Conlin’s testimony shows that employees 

of the consortium members who were seconded to the Abadan 

refinery as management employees were paid by the consortium 

members or their work was directed or controlled by the 

consortium members.19 Nor does Agopsowicz’s testimony Exxon’s 

19 The Irani plaintiffs also rely on Agopsowicz’s testimony in 

which he agreed that the Exxon defendants’ predecessors 

“believe[d] at the time of signing [the Agreement] that [they] had 

an obligation to ensure that the Abadan [r]efinery was operated 

appropriately.” But as we concluded in Sabetian, “[T]he 

consortium members’ guarantees were to Iran and NIOC and fall 

short of evidence defendants exercised direct control of day-to-day 

operations at the refinery. Further, although Agopsowicz was 

designated as the person most qualified for the Exxon 

defendants, his testimony was not based on personal knowledge 

of the consortium members’ intent in entering into the 

Agreement, but his reading of the Agreement.” (Sabetian, supra, 

57 Cal.App.5th at p. 1075, fn. 16.) The Irani plaintiffs take issue 
28

predecessor sent its employee Paul Kuhl to work for the 

Operating Companies as general manager of the Abadan refinery 

create a triable issue of fact as to the predecessor company’s 

control absent evidence Kuhl was directed or controlled by the 

predecessor company in his role as refinery manager. 

The Irani plaintiffs’ reliance on the holding in Kesner, 

supra, 1 Cal.5th 1132 is misplaced. In Kesner, the Supreme 

Court held that employers and premises owners have a duty to 

protect family members of on-site workers from secondary 

exposure to asbestos carried home on the bodies and clothing of 

the workers. (Id. at p. 1140.) The Kesner court started from the 

premise that under section 1714, “‘the general duty to take

with the latter statement, contending that as the person most 

qualified Agopsowicz spoke for the Exxon defendants irrespective 

of his personal knowledge. However, the Irani plaintiffs do not 

provide any argument to rebut our conclusion in Sabetian that 

the guarantees by the predecessor companies to Iran and NIOC 

did not show their direct control of day-to-day operations at the 

Abadan refinery. We similarly reject the Irani plaintiffs’ reliance 

on the statement of Chevron’s predecessor to stockholders in its 

1964 annual report that “[t]he Iranian oil consortium has 

operated Iran’s principal oil[] producing, refining, and 

transportation facilities for the past ten years,” and their reliance 

on the Exxon defendants’ admission in their separate statement 

of facts that the consortium members “were to ensure the 

availability of ‘sufficient oil and products’ ‘to market substantial 

quantities of Iranian oil . . . .’” In context, both statements refer 

to the consortium members’ creation of the Operating Companies 

to operate and manage the Abadan refinery, their provision of 

seconded employees to the Operating Companies, and their 

ownership interest in IOP. This evidence fails to show 

defendants exercised direct control of the day-to-day operations 

at the refinery.
29

ordinary care in the conduct of one’s activities’ applies to the use 

of asbestos on an owner’s premises or in an employer’s 

manufacturing processes” (Kesner, at p. 1144), but it considered 

the Rowland factors to determine “‘whether a categorical 

exception to that general rule should be made’ exempting 

property owners and employers from potential liability to 

individuals who were exposed to asbestos by way of employees 

carrying it on their clothes or person.” (Id. at p. 1145, quoting 

Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 774.) The 

Kesner court concluded it was “entirely foreseeable” that workers 

would bring asbestos dust home at the end of the day if adequate 

precautions were not taken, and, therefore, “[t]he foreseeability 

factors weigh in favor of finding a duty.” (Kesner, at p. 1149.)

Unlike the allegations in Kesner, there is no evidence the 

Chevron and Exxon defendants operated or controlled the 

Abadan refinery or the sources of asbestos at the refinery, 

thereby imposing on them a duty under section 1714 to protect 

refinery workers like Irani from exposure to asbestos. (See Isaacs 

v. Huntington Memorial Hospital, supra, 38 Cal.3d at p. 134.) 

Irani was employed by NIOC and IORC on premises operated by 

NIOC and IORC. This is in contrast to the allegations at issue in 

Kesner that the defendant’s predecessors were “engaged in active 

supervisory control and management of asbestos sources” at the 

workplace. (Kesner, supra, 1 Cal.5th at p. 1161.)

3. The Irani plaintiffs failed to raise a triable issue of 

fact that the Agreement created a special relationship 

between defendants’ predecessors and Irani

The Irani plaintiffs contend the Chevron and Exxon 

defendants (through their predecessor companies) owed a duty to 
30

protect refinery workers like Irani from asbestos exposure based 

on a special relationship between the consortium members and 

the refinery workers arising from the consortium members’ 

guarantee in the Agreement of the Operating Companies’ “due 

performance” under the Agreement, relying on J’Aire Corp. v. 

Gregory (1979) 24 Cal.3d 799 (J’Aire). Under the Irani plaintiffs’

argument, the Chevron and Exxon defendants owed a duty to the 

refinery workers because harm to refinery workers from asbestos 

exposure was reasonably foreseeable under the Agreement. 

Further, the Irani plaintiffs point to the Operating Companies’ 

obligation “to conform with good oil industry practice and sound 

engineering principles.” We rejected this argument in Sabetian, 

holding the J’Aire factors did not support imposition of liability 

on the Chevron and Exxon defendants.20 (Sabetian, supra, 

57 Cal.App.5th at p. 1075.)

20 In their reply brief, the Irani plaintiffs criticize our analysis 

in Sabetian, arguing section 1714 establishes a presumptive duty 

to exercise ordinary care in one’s activities and “Sabetian did not 

start from the presumption of a duty [of care] and determine 

whether, given that presumption, a categorical exception should 

be created.” However, as we concluded in Sabetian, no duty of 

care arose under section 1714 because the plaintiffs failed to 

show the Chevron or Exxon defendants operated or controlled the 

premises where the asbestos exposure was alleged to have 

occurred. (Sabetian, supra, 57 Cal.App.5th at p. 1075 [“[T]here is 

no evidence the Chevron and Exxon defendants operated or 

controlled the Abadan refinery or the sources of asbestos at the 

refinery, thereby imposing on them a duty under section 1714 to 

protect refinery workers like Sabetian from exposure to 

asbestos.”].) We therefore had no occasion to evaluate whether 

an exception to section 1714 applied. 
31

“A duty running from a defendant to a plaintiff may arise 

from contract, even though the plaintiff and the defendant are 

not in privity. [Citations.] Under these circumstances, the 

existence of a duty is not the general rule, but may be found 

based on public policy considerations.” (Lichtman v. Siemens 

Industry Inc. (2017) 16 Cal.App.5th 914, 921 (Lichtman)

[company responsible for maintaining battery backup system for 

traffic signals owed duty of care to plaintiffs who were injured in 

traffic collision during power outage in which traffic signal 

stopped functioning]; J’Aire, supra, 24 Cal.3d at pp. 802, 804-805 

[lessee who operated a restaurant alleged sufficient facts to state 

a cause of action for negligence to recover lost income from 

dilatory performance by contractor hired by owner of building to 

renovate restaurant]; Biakanja v. Irving (1958) 49 Cal.2d 647, 

651 (Biakanja) [notary public who drafted a will for the decedent 

owed a duty of care to an estate beneficiary who was not in 

contractual privity with the notary public]; see generally Aas v. 

Superior Court (2000) 24 Cal.4th 627, 637-645 (Aas) [detailing 

evolving case law], superseded by statute on other grounds as 

stated in Rosen v. State Farm General Ins. Co. (2003) 30 Cal.4th 

1070, 1079-1080.)

Under the balancing test articulated in Biakanja and 

J’Aire, in determining whether a duty of care arises from a 

contract in favor of a noncontracting party, the Supreme Court 

considered “[(1)] ‘the extent to which the transaction was 

intended to affect the plaintiff,’ [(2)] ‘the foreseeability of harm to 

[him],’ [(3)] ‘the degree of certainty that the plaintiff suffered 

injury,’ [(4)] ‘the closeness of the connection between the 

defendant’s conduct and the injury suffered,’ [(5)] ‘the moral 

blame attached to the defendant’s conduct,’ and [(6)] ‘the policy of 
32

preventing future harm.’” (Southern California Gas Leak Cases, 

supra, 7 Cal.5th at p. 401, citing J’Aire, supra, 24 Cal.3d at 

p. 804; accord, Goonewardene v. ADP, LLC (2019) 6 Cal.5th 817, 

838 (Goonewardene);

21 Aas, supra, 24 Cal.4th at p. 644; Stewart

v. Cox, (1961), 55 Cal.2d 857, 863 (Stewart); see Biakanja, supra,

49 Cal.2d at p. 650.)

As we concluded in Sabetian, “the J’Aire factors do not 

support imposition of liability on the Chevron and Exxon 

defendants by virtue of the consortium members’ guarantee in 

article 3 of the Operating Companies’ performance of their 

obligations under the Agreement. Most significantly, under the 

first factor, the Agreement was not intended to affect . . . refinery 

workers, but rather, it was intended to accelerate Iranian oil 

production and exportation to the global market. Indeed, the 

obligations of the Operating Companies most relevant to 

protection of the refinery workers—to conform with good industry 

practice and prepare plans and programs for industrial and 

technical training and education—were specifically owed under 

the Agreement ‘to Iran and NIOC.’ [Irani] is unlike the plaintiff 

21 In Goonewardene, supra, 6 Cal.5th at page 838, the 

Supreme Court observed additional “policy considerations that 

may appropriately be considered in determining whether a tort 

duty of care should be recognized or imposed in the absence of 

privity of contract” included whether recognition of the duty of 

care “would (1) impose liability out of proportion to fault, (2) be 

unnecessary in light of the prospect of private ordering [of a 

product or service], and (3) would likely have an adverse effect on 

the availability of [a defendant’s] services.” Because the Irani 

plaintiffs have not argued that consideration of these additional 

factors supports finding a duty of care, we focus on the factors in 

the Biakanja and J’Aire balancing tests as briefed by the parties.
33

in J’Aire, a lessee whose restaurant business was interrupted by 

a contractor’s renovations to improve the restaurant, or the 

plaintiff in Biakanja, the sole beneficiary of a will the notary 

public negligently failed properly to attest.” (Sabetian, supra, 

57 Cal.App.5th at p. 1078, citing J’Aire, supra, 24 Cal.3d at p. 804

and Biakanja, supra, 49 Cal.2d at pp. 648, 651.)

We reasoned in Sabetian, “Typically, as in J’Aire and 

Stewart, the first two J’Aire factors operate in tandem—because 

the underlying contract was intended to affect the plaintiffs, the 

harm to the plaintiffs as a result of the defendants’ negligence 

was a fortiori foreseeable.” (Sabetian, supra, 57 Cal.App.5th at 

p. 1078.) But we noted that “where a plaintiff is not entitled to 

maintain a breach of contract action based on the third party 

beneficiary doctrine, ‘it would clearly be anomalous to impose tort 

liability, with its increased potential damages [citation], upon 

[the defendant] based upon its alleged failure to perform its 

obligations under its contract with plaintiff’s employer.’” (Id. at 

p. 1079, quoting Goonewardene, supra, 6 Cal.5th at p. 840.) 

Here, as in Sabetian, Irani “was not a third party beneficiary of 

the Agreement because one of the three required elements is 

missing—that the ‘motivating purpose of the contracting parties 

was to provide a benefit to the third party.’” (Sabetian, at 

p. 1079, quoting Goonewardene, at p. 830.)

We concluded the foreseeability of harm to refinery workers 

as a result of the consortium members’ failure to protect refinery 

workers did not favor liability, because the Agreement vested 

exclusive power to control day-to-day refinery operations in IORC 

and IOEPC. (Sabetian, supra, 57 Cal.App.5th at p. 1079.) “The 

fact the consortium members committed to ensure the Operating 

Companies performed their obligations under the Agreement 
34

does not mean the consortium members had the power to control 

the day-to-day activities of the refineries. This is unlike the 

situation in J’Aire, in which the contractor had the ability to 

control the extent to which the tenant was harmed by the 

contractor’s conduct under the agreement with the property 

owner. (J’Aire, supra, 24 Cal.3d at p. 804.).” (Sabetian, at 

p. 1079.)

As to the third factor, as in Sabetian, there is a high degree 

of certainty that Irani suffered injury due to his exposure to 

asbestos at the Abadan refinery.22 (Sabetian, supra, 

57 Cal.App.5th at p. 1080.) “But the fourth factor, the closeness 

of the connection between consortium members’ conduct and 

[Irani]’s injury, is attenuated because IORC and NIOC, not the 

consortium members, controlled day-to-day refinery operations. 

Likewise, the fifth factor, the moral blame attached to the 

consortium members’ conduct, is weak,” absent evidence of the 

consortium members’ negligence in the execution of their 

contractual duties or that they had control over the operations 

that caused the harm. (Ibid.)

“The sixth factor, the policy of preventing future harm, 

similarly does not favor [the Irani plaintiffs]. Because the 

consortium members were not in a position to control the day-today operations of the Abadan refinery, they were not in the best 

position to prevent future harm at the refinery. Further, the 

Agreement acknowledged the consortium members were separate 

corporate entities from the Operating Companies, including 

22 On appeal, defendants do not contend the Irani plaintiffs

failed to raise a triable issue of fact regarding whether Irani’s

mesothelioma was caused by asbestos exposure at the Abadan 

refinery.
35

IORC. We recognize the important public policy to require 

employers to provide a safe and secure workplace, but there is 

also a public policy recognizing the benefits of allowing 

companies to limit their business risks through the creation of a 

separate corporate entity.” (Sabetian, supra, 57 Cal.App.5th at 

p. 1080.) Here, the consortium members limited their risk by 

creating the Operating Companies. Further, as noted, the Irani 

plaintiffs abandoned their argument in the trial court the 

consortium members were the alter egos of IOP or the Operating 

Companies.

The Irani plaintiffs’ reliance on Seo v. All-Makes Overhead 

Doors (2002) 97 Cal.App.4th 1193, 1197 is misplaced. There, a 

commercial subtenant was injured when he reached his arm 

through an electronic sliding gate to activate a switch to close the 

gate. (Id. at p. 1198.) The Court of Appeal concluded the 

defendant company that had repaired the gate for the property 

owner owed no duty of care to the subtenant to warn of design 

defects unrelated to the repairs performed by the defendant. (Id. 

at pp. 1198-1199.) The Seo court observed, however, that an 

independent contractor may owe a duty to a third party where it 

negligently performs a repair, fails to make a requested repair, or 

assumes the owner’s duty to inspect and maintain the equipment 

and negligently fails to perform, leading to injury to the third 

party. (Id. at p. 1206.) Here, the Irani plaintiffs have not 

presented evidence showing defendants performed repairs, 

inspections, or maintenance or assumed the responsibility 
36

assigned to IORC and NIOC under the Agreement to inspect or 

maintain the Abadan refinery.23

Finally, the Irani plaintiffs argue the predecessor 

companies were sureties of the performance by the Operating 

Companies by virtue of the predecessor’s commitments in the 

Agreement, relying on sections 2787 and 2807.

24 They argue the 

23 Mace v. United States (N.D. Cal., Mar. 23, 2017, No. 15-CV04060-LB) 2017 WL 1102736, relied on by the Irani plaintiffs, is 

distinguishable for the same reason. In Mace, the National Park 

Service hired the defendant tree services company on two 

occasions to remove visible large seed pods from the park’s trees. 

(Id. at pp. *1-2.) Nineteen months after the tree services 

company completed its second seed pod removal, a park patron 

was injured by a falling pod. (Ibid.) The tree services company 

moved for summary judgment, arguing it owed no duty beyond 

its contractual commitments to remove the seed pods. (Id. at 

p. *6.) The district court denied the motion, finding triable issues 

whether the tree service company had breached a duty of care to 

warn the National Park Service about the dangers of selectively 

pruning seed pods and to recommend safe pruning measures. 

(Id. at p. *10.) Unlike the tree services company in Mace, there is 

no evidence the predecessor companies performed any work for 

NIOC or the Operating Companies that gave rise to Irani’s 

asbestos-related injury. Under the Agreement, it was IORC and 

NIOC that assumed the duty to control refinery operations. The 

Irani plaintiffs have provided no authority for the proposition a 

party that guarantees the performance of another assumes a 

duty to prevent harm to third parties caused by the performance.

24 Section 2787 provides in part, “A surety or guarantor is one 

who promises to answer for the debt, default, or miscarriage of 

another, or hypothecates property as security therefor.” 

Section 2807 states, “A surety who has assumed liability for 
37

predecessor companies, as sureties, became liable to the Irani 

plaintiffs for the harm caused to Irani by the Operating 

Companies, which defaulted on their guarantee “to conform with 

good oil industry practice.” This argument lacks merit. As 

discussed, “IORC’s commitment to conform with good industry 

practice was explicitly stated in the Agreement as an obligation 

to Iran and NIOC, as were the consortium members’ guarantees.” 

(Sabetian, supra, 57 Cal.App.5th at p. 1073.) Brunswick Corp. v. 

Hays (1971) 16 Cal.App.3d 134, relied on by the Irani plaintiffs, is 

inapposite. Brunswick addressed a guarantor’s liability to a 

creditor for the debts of the principal debtor. The Irani plaintiffs 

cite no authority for the proposition a guarantor is liable in tort

for injuries to third parties caused by the conduct of the principal 

debtor. To the extent the predecessor companies were legally 

obligated under the Agreement for the default of the Operating 

Companies, the obligation was to Iran and NIOC, who stood in 

the position of creditors under the surety framework argued by 

the Irani plaintiffs.

25

payment or performance is liable to the creditor immediately 

upon the default of the principal, and without demand or notice.”

25 The Irani plaintiffs also invoke section 3521, which 

provides, “He who takes the benefit must bear the burden.” 

Section 3521 provides a “maxim[] of jurisprudence” to “aid in 

the[] just application” of the Civil Code, “not to qualify” its 

provisions. (§ 3509.) Among other things, this maxim underlies 

the doctrine of equitable estoppel (In re Marriage of 

Bittenson (2019) 41 Cal.App.5th 333, 338) and informs the 

interpretation of contracts. (See Hearn Pacific Corp. v. Second 

Generation Roofing, Inc. (2016) 247 Cal.App.4th 117, 119 [under 

§ 3521 “an assignee’s acceptance of the benefits of a contract 
38

4. The Irani plaintiffs failed to raise a triable issue of 

fact that defendants’ predecessors had a duty to 

protect Irani based on a special relationship between 

defendants’ predecessors and the Operating 

Companies

The Irani plaintiffs contend the predecessors to the 

Chevron and Exxon defendants owed a duty to Irani based on a 

special relationship the defendants had with the Operating 

Companies to protect Irani from the intentional misconduct of 

third parties. This contention lacks merit.

“A duty to control, warn, or protect may be based on the 

defendant’s relationship with ‘either the person whose conduct 

needs to be controlled or [with] . . . the foreseeable victim of that 

conduct.’” (Regents, supra, 4 Cal.5th at p. 619 [“a duty to control 

may arise if the defendant has a special relationship with the 

foreseeably dangerous person that entails an ability to control 

that person’s conduct”]; accord, Brown, supra, 11 Cal.5th at 

p. 215 [“In a case involving harm caused by a third party, a 

person may have an affirmative duty to protect the victim of

another’s harm if that person is in what the law calls a ‘special 

relationship’ with either the victim or the person who created the 

harm.”]; Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 235 

[same].) “A special relationship between the defendant and the 

victim is one that ‘gives the victim a right to expect’ protection 

containing a fee clause, by bringing suit, constitutes an implied 

assumption of the attorney fee obligations, unless there is 

evidence the parties did not intend to transfer those fee 

obligations”].) The Irani plaintiffs cite no authority interpreting 

section 3521 to impose tort liability based on a contract for 

injuries to third parties.
39

from the defendant, while a special relationship between the 

defendant and the dangerous third party is one that ‘entails an 

ability to control [the third party's] conduct.’ . . . The existence of 

such a special relationship puts the defendant in a unique 

position to protect the plaintiff from injury. The law requires the 

defendant to use this position accordingly. [Citation.] [¶] Where 

the defendant has neither performed an act that increases the 

risk of injury to the plaintiff nor sits in a relation to the parties 

that creates an affirmative duty to protect the plaintiff from 

harm . . . the defendant owes no legal duty to the plaintiff.” 

(Brown, at p. 216; accord, Regents, at p. 621.)

In Regents, the Supreme Court considered the “common 

features” of a special relationship. (Regents, supra, 4 Cal.5th at 

p. 620.) The Supreme Court observed, “Generally, the 

relationship has an aspect of dependency in which one party 

relies to some degree on the other for protection. . . . [¶] . . . The 

corollary of dependence in a special relationship is control. 

Whereas one party is dependent, the other has superior control 

over the means of protection. ‘[A] typical setting for the 

recognition of a special relationship is where “the plaintiff is 

particularly vulnerable and dependent upon the defendant who, 

correspondingly, has some control over the plaintiff’s welfare.”’” 

(Regents, supra, 4 Cal.5th at pp. 620-621.) Further, “[s]pecial 

relationships also have defined boundaries. They create a duty of 

care owed to a limited community, not the public at large.” (Id. 

at p. 621.) Finally, the court noted that “although relationships 

often have advantages for both participants, many special 

relationships especially benefit the party charged with a duty of 

care,” identifying retail stores and hotels as examples. (Ibid.) 
40

The Regents court concluded a college has a special 

relationship with its students, observing that college students are 

“dependent on their college communities to provide structure, 

guidance, and a safe learning environment” and “have superior 

control over the environment and the ability to protect students.” 

(Regents, supra, 4 Cal.5th at p. 625.) However, the court limited 

the college’s duty of care to “activities that are tied to the school’s 

curriculum but not to student behavior over which the university 

has no significant degree of control,” explaining the college would 

be expected to retain a “measure of control” over the classroom 

environment. (Id. at p. 627.)

Here, as discussed, the Irani plaintiffs failed to raise a 

triable issue that the Chevron and Exxon defendants retained 

any measure of direct control over the Operating Companies. As 

we observed in Sabetian in the context of our analysis of the 

J’Aire factors, the consortium members were not in the best 

position to prevent future harm at the refinery. (Sabetian, supra, 

57 Cal.App.5th at p. 1080.) In the absence of a showing of 

defendants’ authority to exercise control, the trial court properly 

granted summary judgment in favor of the Irani plaintiffs. (See 

Barenborg v. Sigma Alpha Epsilon Fraternity (2019) 

33 Cal.App.5th 70, 75, 81 [national fraternity did not have special 

relationship with its local chapter and therefore had no duty to 

protect student who was injured at party held by local chapter, 

despite national fraternity’s adoption of policies governing local 

chapter and ability to discipline chapter for policy violations 

because it had no ability to prevent injury].)

The Irani plaintiffs’ reliance on our opinion in Brown v. 

USA Taekwondo (2019) 40 Cal.App.5th 1077, affd. Brown, supra, 

11 Cal.5th 204, is misplaced. There, we concluded the plaintiffs 
41

had alleged facts sufficient to support a special relationship 

between the defendant taekwondo association and its registered 

taekwondo coach, and on that basis we concluded the taekwondo 

association had a duty to protect student athletes from sexual 

abuse by the coach. (Brown v. USA Taekwondo, supra, 40 

Cal.App.5th at p. 1094.)26 We reasoned that because the 

taekwondo association had control over the coach through its 

policies and procedures establishing requirements for coaches, it 

“was therefore ‘“‘in the best position to protect against the risk of 

harm’”’ and ‘“meaningfully reduce the risk of the harm that 

actually occurred.”’” (Ibid.) Further, we found the Rowland

factors supported “recognition of [the taekwondo association’s]

duty to use reasonable care to protect taekwondo youth athletes 

from foreseeable sexual abuse by their coaches.” (Brown v. USA 

Taekwondo, at p. 1101.) However, we concluded the plaintiffs 

had not alleged facts sufficient to establish that the defendant 

Olympic Committee had a special relationship with the coach

because the allegations did not establish the committee had the 

ability to control the coach’s conduct or was in the best position to 

protect plaintiffs from the coach’s sexual abuse. (Id. at p. 1102.)

Here, the record does not contain any policies and 

procedures or other evidence showing the predecessors to the 

Chevron and Exxon defendants had the ability to control the day26 The Supreme Court in affirming our decision “express[ed] 

no view on the merits of the Court of Appeal’s application of the 

special relationship test to either USAT or USOC. These factdependent issues fall outside the scope of the only question 

presented for our review.” (Brown, supra, 11 Cal.5th at p. 213, 

fn. 4.)
42

to-day conduct of the Operating Companies in running the 

Abadan refinery, nor have the Irani plaintiffs presented evidence 

showing defendants’ predecessors had the ability to control the 

asbestos products used at the Abadan refinery or were in the best 

position to protect Irani from asbestos exposure. As discussed, it 

was NIOC that owned the refinery and IORC that operated the 

refinery, without any direct control by the predecessor 

companies.

DISPOSITION

The judgment is affirmed. Respondents are entitled to 

recover their costs on appeal.

FEUER, J.

We concur:

PERLUSS, P. J.

McCORMICK, J.*

* Judge of the Orange County Superior Court, assigned by 

the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.